Analysis: Stormy Daniels Files Questionable Defamation Suit Against Donald Trump In New York

[mahatmakanejeeves]

Stephanie Clifford aka Stormy Daniels Files Questionable Defamation Suit Against Donald Trump In New York: Analysis

Link to tweet

Stephanie Clifford aka Stormy Daniels Files Questionable Defamation Suit Against Donald Trump In New York: Analysis

APRIL 30, 2018 BY KEN WHITE

It's always something.

In my last update on the Donald Trump/Stormy Daniels/Michael Cohen saga, I described the hearing at which Michael Cohen asked United States District Court Judge James Otero to stay — that is, freeze — Stormy Daniels' lawsuit in federal court in Los Angeles, in which she seeks a declaration that her $130,000 hush-money deal with the President of the United States is invalid, and in which she sues Michael Cohen for defamation. Michael Cohen filed the declaration Judge Otero demanded, committing to taking the Fifth in the Los Angeles case. Judge Otero then granted Cohen's motion in a thoughtful and thorough order. So, for those keeping score at home: there's an ongoing federal criminal investigation of the Stormy Daniels hush money deal in New York, and there's Stormy Daniels' lawsuit in Los Angeles, which is temporarily stayed.

That was too calm. Now Stormy Daniels, through her not-exactly-media-shy attorney Michael Avenatti, has sued Donald Trump for defamation in federal court in the Southern District of New York — the same court where United States District Judge Kimba Wood is sorting out the disputes relating to the search of Michael Cohen's office. (As of this writing the case isn't assigned to a judge yet; it's possible that it would get transferred to Judge Wood as related to the matter before her.)

In the lawsuit, Ms. Daniels repeats her now-familiar account of a relationship with Trump. She says that in May 2011, when she was contemplating telling her story to In Touch, a man threatened her in a Las Vegas parking lot, telling her to forget the story. She recently released a sketch of her impression of the man who threatened her. The President of the United States, ever temperate and thoughtful of his lawyers' blood pressure, tweeted about the sketch:

{snip}

[BigmanPigman]

1. How does filing it in NYC instead of LA

help his case and client? Conflict of interests?

[jberryhill]

2. SLAPP

This suit wouldn't last long in California.

The other reason is that Trump is a resident of NY and DC. Cliffords is a resident of TX. There's no basis for jurisdiction over this claim in California.

Cliffords is suing to recover all of the sales of her videos and public performances, as a consequence of people who were doing so, but then decided not to continue doing so when Trump called the sketch a fake, because Trump is so broadly considered a reliable source of "who is a liar" by so many people.

[BigmanPigman]

3. What's SLAPP?

[PJMcK]

4. Strategic Lawsuit Against Public Participation

Here's a Wikipedia link:

https://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation

[BigmanPigman]

5. Aahhh, thanks!

That makes sense.

[jberryhill]

6. Depends on the state

In a nutshell, SLAPP stands for "strategic lawsuit against public participation", and there are a variety of anti-SLAPP laws in states which provide for a streamlined evaluation of whether a defamation suit has legs, and for fee shifting.

California has a broad enough statute that pretty much anything Cohen or Trump might say about Daniels' claims are not going to be actionable:

https://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation

California has a unique variant of anti-SLAPP legislation. In 1992 California enacted Code of Civil Procedure § 425.16, a statute intended to frustrate SLAPPs by providing a quick and inexpensive defense. It provides for a special motion that a defendant can file at the outset of a lawsuit to strike a complaint when it arises from conduct that falls within the rights of petition or free speech. The statute expressly applies to any writing or speech made in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, but there is no requirement that the writing or speech be promulgated directly to the official body. It also applies to speech in a public forum about an issue of public interest and to any other petition or speech conduct about an issue of public interest.

The way that Avenatti has conducted himself, there's no way in hell he could argue that commentary about Daniels' case is not about "an issue of public interest". The anti-SLAPP (and SLAPP-back) part of the CA case would have been still moving at this point, and not subject to the 90 day stay of that action, had Avenatti not argued that the defamation claim is dependent on whether the arbitration agreement is valid (as Judge Otero noted in the opinion granting the stay, to tell Avenatti he'd scored an own-goal).

In New York, SLAPP-qualified actions are extremely narrow and this one doesn't qualify.

Aside from any number of motions that might be worth trying here, I'd suggest that Trump's attorneys move to transfer this claim to California, since it arises from broadly the same operative facts as the pending suit in CA in which the parties are already joined in litigation, and then SLAPP it.

At the end of the day, if it turns out that everyone whom Trump calls a liar gets $75,000, then Trump will indeed have ushered in a new era of prosperity for this country.

[BigmanPigman]

7. That almost makes me wish he has publicly called me a liar.

I could use it to pay for the higher taxes I had to pay due to the ACA revisions. No tax cuts for me.

[jberryhill]

8. Well, that's part of the mix here too

Him finally mentioning her at all is a publicity boost, as if there is anyone living under a rock somewhere that hadn't already heard about all this and had their mind made up one way or the other.

With the California case stayed for at least 90 days, this NY case gives Avenatti more talking head fuel.